My overly simplified definition of confidentiality is that nobody can say anything to anyone at any time about what was said or done in mediation.

Most assuredly, you want your mediation to be confidential, and it should be for the protection of all the parties involved.

The Mediation Confidentiality and Privilege Act is covered and explained by Florida Statute 44-401 through44-406.

The statute is both thorough and explicit, and it pertains to all parties in mediation.

Yes, there are a very few limited exceptions to the confidentiality, for example when the mediation or mediation agreement is being used to plan, commit, or attempt to commit a crime, and/or conceal an ongoing criminal investigation.

I am not personally aware of any instances where those exceptions have applied, but they are covered in the statute.

The more important thing to know is when confidentiality begins.

One might reasonably think confidentiality starts when all the parties enter the mediation room, but that is not the correct answer.

Confidentiality begins when an order to mediate is issued by the court or the parties voluntarily agree to mediate.

Yes, confidentiality starts even before the parties gather and the mediation session starts, and carries through until the mediation ends.

Does that mean that the parties can disclose what happened in the mediation after the session ends?

No, absolutely not. In fact, mediation is so confidential that if the parties do not reach an agreement in mediation, they can't go before a judge and disclose anything that either they or the other parties said or did during the mediation. Now you know that confidentiality begins when mediation is ordered by a court, or when the parties agree to participate in mediation.

The mediation session will end either when the parties reach an agreement, agree to an adjournment, an impasse is declared, or the mediation is terminated. Those are the ways the mediation can end, but the confidentiality does not end.

There are many instances where a case going to mediation can involve multiple parties, e.g. one or more insurance companies or multiple lenders.

What if the mediation involves more than two par ties, and one or more of the parties either withdraws or is dropped from the case?

Is the party that is no longer a part of the case and mediation relieved of the obligation of confidential ity? No.

I can't speak for all mediators as to how they handle confidentiality, but let me tell you how I handle it.

I'm a stickler for complete confidentiality. Because I am not an attorney, I have adopted what I consider to be a set of safe practices.

First of all, I have a manila folder for each case I mediate. Written on the outside of the folder is the case number.

Written on the inside are the names of the attorneys participating, plus the date and time the mediation session started, the time it end ed, and whether the session ended with a settlement, an adjournment, an impasse or a termination.

If the session ended in an adjournment, I add the date to which it was adjourned.

Additionally, I have a one paragraph confidentiality agreement which all par ties must sign before the mediation begins.

Any other papers concerning the case that I obtained before or during the mediation session are shredded at the end of the session.

Nothing is retained concerning the nature of the case or any agreement that may have been reached.

If you're a participating party in any type of mediation, you want, and deserve complete confidentiality.

That confidentiality and the ethics of the parties involved are the one of the cornerstones of the protection you deserve and should expect.

Next time, is "Fairly Legal" fairly accurate?

Stan Lipp is a professional Florida Supreme Court certified county, circuit, civil mediator who is also foreclosure mediation trained. Questions? Contact him at (239) 649-5407, by e-mail at splipp@earthlink.net or on the Internet at www.stanlippmediations.com.